R v Clarke - [2000] NSWCCA 160

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Jade Lillian CLARKE [2000] NSWCCA 160

FILE NUMBER(S):
60196/99

HEARING DATE(S): 5th May 2000

JUDGMENT DATE: 05/05/2000

PARTIES:
Regina v Jade Lillian Clarke

JUDGMENT OF: Hulme J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/11/0702

LOWER COURT JUDICIAL OFFICER: Christie DCJ

COUNSEL:
J S Stratton - Applicant
L M B Lamprati - Crown

SOLICITORS:
T A Murphy - Applicant
S E O'Connor - Crown

CATCHWORDS:
Criminal law - sentence appeal - alleged failure by sentencing judge to achieve parity of sentence between co-offenders - appellant pregnant at time of sentence - no sentencing error detected.

LEGISLATION CITED:
Crimes Act 1900, ss 97(1), 114(1), 116, 117

DECISION:
Application for leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60196/99

HULME J
CARRUTHERS AJ

Friday, 5 May 2000

REGINA v Jade Lillian CLARKE

JUDGMENT

CARRUTHERS AJ: Jade Lillian Clarke seeks leave to appeal against sentences imposed on her by his Honour Justice Christie QC at the Sydney District Court on 22 April 1999. The applicant had earlier pleaded guilty to one count under Section 97 of the Crimes Act, 1900 (the Act) robbery in company, which carries a maximum penalty of 20 years penal servitude.
His Honour took into account two offences on a Form 1, being one count of being armed with intent to commit an indictable offence under Section 114 of the Act. This offence carries a maximum penalty of seven years penal servitude. The second count was one of larceny which carries a maximum penalty of penal servitude for five years: see ss 116 and 117 of the Act.

His Honour sentenced the applicant to a minimum term of 3 years penal servitude to commence on 26 November 1998 - the date upon which the applicant was taken into custody - and to expire on 25 November 2001. His Honour imposed an additional term of two years to commence on 26 November 2001 and to expire on 25 November 2003.

The applicant was born on 7 December 1979 and she had no prior criminal record. The applicant's co-offender in relation to the robbery in company offence was George Shannon Moses, who pleaded guilty before Judge Christie to armed robbery. This count was also under Section 97 of the Act. The only difference, of course, between the charges was the applicant was charged with robbery in company, whereas the co-offender Moses, was charged with armed robbery. However, in relation to Mr Moses's sentence, his Honour was not required to take into account any matters under Form 1.

Judge Christie imposed an identical sentence upon Mr Moses in relation to the armed robbery as that which he imposed on the applicant in respect of the robbery in company. Very briefly stated, the facts in relation to the robbery are that a little after 1am on Monday, 23 March 1998, a Mr Wusarne was working alone as a console operator at the Caltex Service…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Clarke

Details

AGLC: R v Clarke [2000] NSWCCA 160
Case: [2000] NSWCCA 160
Decision Date: 5 May 2000

CaseChat Overview and Summary

The case of R v Clarke involved the appellant, who was convicted of a crime alongside a co-offender. The appellant appealed the sentence imposed by the court, arguing that the sentencing judge failed to achieve parity of sentence between the co-offenders. The appellant was pregnant at the time of the sentencing, and she contended that this factor should have been taken into account in determining her sentence. The case was heard by the court of appeal in Australia.

The primary legal issue before the court was whether the sentencing judge had failed to adequately consider the principle of parity in sentencing, which requires that co-offenders receive sentences that are proportionate to their respective roles in the crime. The appellant argued that her sentence should have been more lenient than that of her co-offender, given that she was pregnant at the time of the offence. The court was required to consider whether the sentencing judge had erred in failing to achieve parity of sentence between the co-offenders, and whether the appellant's pregnancy should have been taken into account in determining her sentence.

The court of appeal found that there was no sentencing error in the case. The sentencing judge had considered the principle of parity and had taken into account the appellant's pregnancy, as well as other relevant factors, in determining her sentence. The court held that the sentence imposed on the appellant was appropriate, and that there was no basis for the appellant's claim that the sentencing judge had failed to achieve parity of sentence between the co-offenders. The appeal was therefore dismissed.

The court made no further orders in the case. The appellant's sentence stood as imposed by the sentencing judge, and the principle of parity in sentencing was upheld. The court emphasised the importance of considering individual circumstances and relevant factors in determining appropriate sentences for co-offenders.

Orders